The Supreme Court and the Individual Mandate

Over on Brad Joondeph’s indispensable blog about the health care litigation, he notes that we still only have one circuit court opinion on the constitutionality of the individual mandate. The cert petition from that case (in the Sixth Circuit) was filed recently and will probably be taken up by the Court in October. This raises an interesting question. Suppose that there is no circuit split by then (i.e., the Fourth and Eleventh circuits do nothing or concur with the Sixth in upholding the mandate). Should the Court take the case?

There are at least three factors that could lead the Justices to take a case on which there is no split. One is that a litigant wants a Supreme Court precedent overruled. The circuits can’t do that, and hence there is usually no reason to think that there would be a circuit split. Second, a majority of the Court may want to change the law or make a statement about existing law–circuit split or no–and is confident that it has the votes. Third, there is a compelling interest in finality about a very important legal issue.

The last explanation is the only one that makes sense with respect to health care, but I’m not sure how powerful that interest is right now. After all, the finality could be supplied by the 2012 presidential election, with the individual mandate repealed or reaffirmed by the outcome of that vote. Personally, I think that the Court should not take this case up next year, though if there is a circuit split my plea for patience will not be convincing.